Okeowa v. State

• Decision Date: 23 April 2021
• Docket Number: CR-19-0273
• Citation: 337 So.3d 767
• Parties: Grace OKEOWA v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

337 So.3d 767

Grace OKEOWA

v.STATE of Alabama

CR-19-0273

Court of Criminal Appeals of Alabama.

April 23, 2021

Brian J. Bogdany of The Bogdany Law Firm, Auburn, for appellant.

Steve Marshall, att'y gen., and Marc A. Starrett, asst. att'y gen., for appellee.

COLE, Judge.

Grace Okeowa, a Nigerian national who was a lawful permanent resident of the United States (known colloquially as a "green-card holder"), pleaded guilty to third-degree theft of property on December 17, 2018. She was sentenced to 22 months’ imprisonment. Shortly after she pleaded guilty, the United States Immigration and Customs Enforcement agency took Okeowa into custody and began removal proceedings against her.¹

In response, Okeowa filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief, alleging that her trial counsel was ineffective because, she said, her counsel -- who she also alleged "was not aware that [she] was subject to U.S. Immigration Law at the time the plea was entered" -- did not tell her that "her plea would render her categorically deportable from the United States as an aggravated felon." (C. 8.) Okeowa claimed that if her counsel had told her that she would be removed from the United States by pleading guilty to third-degree theft of property, then she would not have entered a guilty plea.

After an evidentiary hearing, the circuit court denied Okeowa's petition. The circuit court found that, based on the testimony of Okeowa's trial counsel, Okeowa was advised through the "Explanation of Rights and Plea of Guilty" form that "a guilty plea may subject [her] to adverse immigration consequences, including deportation," but she did not tell her counsel "of her immigration status." (C. 58.) The circuit court concluded that counsel "cannot be deemed to be ineffective if counsel presented and discussed the Explanation of Rights Form with [her] and [she] neglected to inquire about a plea agreement's effects on her immigration status, or even tell counsel that [she] is an immigrant." (C. 58.) Okeowa appeals the circuit court's decision, and she reasserts on appeal the claim that she raised in her Rule 32 petition.

To resolve Okeowa's appeal we must answer the following question: Does counsel have a duty to investigate and inquire about a client's citizenship status when that status is unknown to counsel so counsel may properly advise that client about the immigration consequences of pleading guilty?

Okeowa argues that her trial counsel had such a duty. According to her, to be constitutionally effective under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), counsel must not only research immigration law and correctly advise noncitizen clients about the immigration consequences of pleading guilty to a crime, but they must also "investigate or inquire" about the immigration status of every client.

The State, on the other hand, argues that, when counsel is unaware of a client's immigration status, as was the case here, counsel has no duty to inquire about a client's citizenship status. Instead, the State says, counsel is providing constitutionally effective assistance when they tell their client that there might be immigration consequences to pleading guilty if the client is a noncitizen. According to the State, after counsel gives that general warning, the noncitizen client bears the burden of telling counsel about his or her immigration status and of raising any questions or concerns he or she might have about pleading guilty. For the reasons set out below, we agree with the State.

"Immigration law can be complex, and it is a legal specialty of its own." Padilla, 559 U.S. at 369, 130 S.Ct. 1473. But, when counsel represents a criminal offender counsel knows is a noncitizen, the complexity of immigration law does not excuse counsel from trying to determine what consequences, if any, a noncitizen client might face by pleading guilty to a criminal offense. Under Padilla, counsel's duty to a client counsel knows is a noncitizen who wants to plead guilty is as follows:

(1) When immigration law is clear that a guilty plea will result in a noncitizen client's removal from the United States, counsel has an affirmative duty to give that noncitizen client "correct advice" about the immigration consequence of their guilty plea. Padilla, 559 U.S. at 369.

(2) When immigration "law is not succinct and straightforward ..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, 559 U.S. at 369 (footnote omitted).

In Padilla, the Supreme Court made clear that counsel's advice to a client, known to be a noncitizen, concerning the possibility of removal from the United States as a consequence of a guilty plea is subject to the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ineffective-assistance-of-counsel test. It also made clear that, when counsel fails to properly advise such a client about the immigration consequences of a guilty plea, counsel has performed deficiently under the first prong of the test set out in Strickland. Padilla does not hold that counsel is per se ineffective if counsel fails to properly advise a noncitizen client about the immigration consequences of a guilty plea. All Padilla holds is that, when a noncitizen alleges in a postconviction petition that counsel was aware that their client was a noncitizen and misinformed the client, or failed to advise the client, about the immigration consequences of pleading guilty to a crime, the petitioner "has sufficiently alleged that his counsel was constitutionally deficient." Whether the petitioner "is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof." Padilla, 559 U.S. at 374, 130 S.Ct. 1473. So, even after Padilla, a petitioner must both plead and prove (1) that his or her counsel's performance was deficient and (2) that his or her counsel's deficient performance prejudiced the client.

But the duty articulated in Padilla to properly advise a noncitizen client of the immigration consequences of a guilty plea assumes that counsel actually knows that his or her client is, in fact, a noncitizen. And, as we read it, we see nothing in Padilla that expressly requires counsel to investigate the citizenship status of every client. We are not alone in our reading. In fact, the Supreme Court of Louisiana reads Padilla the same way, explaining that, in Padilla,

"[t]he Supreme Court declined to determine whether removal was a direct or collateral consequence of a conviction (and, on a larger scale, whether such a distinction is necessary in defining the scope of reasonable assistance required under Strickland [v. Washington, 466 U.S. 668 (1984) ]), finding it ‘uniquely difficult’ to classify. Id., 559 U.S. at 366, 130 S. Ct. at 1482. Instead, the Court concluded that ‘advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.’ Id.

"A closer look at Padilla suggests it imposed a number of duties on defense attorneys, which are subsumed in the obligation to inform a client whether his plea carries a risk of removal. First, while not specifically addressed by Padilla, counsel must determine the immigration status of the noncitizen client, which may prove challenging given the several statuses possible under current law. Second, counsel must scrutinize the elements of the state crime in light of federal immigration law to identify the likelihood of removal following a guilty plea. Third, counsel must advise the client accordingly as to the risk of removal.

"However, it is not clear that Padilla imposed a duty on defense counsel to determine whether his or her client is a noncitizen to begin with, such that failure to make this determination constitutes per se deficient performance. The majority in Padilla arguably proceeded on the supposition that a defense attorney is aware that his or her client is a noncitizen. SeePadilla, 559 U.S. at 370, 130 S. Ct. at 1484 (‘When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.’). Concurring in the Padilla judgment, Justice Alito, with whom Chief Justice Roberts joined, agreed with the Court's result, but took issue with the scope of its holding, asserting in pertinent part:

" ‘In concluding that affirmative misadvice regarding the removal consequences of a criminal conviction may constitute ineffective assistance, I do not mean to suggest that the Sixth Amendment does no more than require defense counsel to avoid misinformation. When a criminal defense attorney is aware that a client is an alien, the attorney should advise the client that a criminal conviction may have adverse consequences under the immigration laws and that the client should consult an immigration specialist if the client wants advice on that subject. By putting the client on notice of the danger of removal, such advice would significantly reduce the chance that the client would plead guilty under a mistaken premise.’

" Id., 559 U.S. at 387, 130 S. Ct. at 1494 (emphasis added).

"....

"We do not believe that the United States Supreme Court in Padilla imposed a duty on every defense attorney to investigate every client's citizenship status in all instances. Instead, the Supreme Court in Padilla answered the question of whether advice about removal consequences is within the reach of the Sixth Amendment at all. SeeChaidez v. United States, 568 U.S. 342, 349, 133 S. Ct. 1103, 1108, 185 L.Ed. 2d 149 (2013) (‘ Padilla considered a threshold question: Was advice about deportation "categorically removed" from the scope of the Sixth Amendment right to counsel’). The Supreme Court in Padilla concluded: ‘ Strickland applied to Padilla's claim.’ Chaidez, 568 U.S. at 353, 133 S. Ct. at 1110 (quoting Padilla, 559

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